Litigating Groups - The University of Alabama | School of Law

59 Pages·2009·0.47 MB·English

File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AMLast Printed: 12/21/2009 9:52:00 AM
A L R
LABAMA AW EVIEW
Volume 61 2009 Number 1
LITIGATING GROUPS
Elizabeth Chamblee Burch*
ABSTRACT
Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases,
breeds conflict. Conflicts arise between attorneys and their clients (agency
problems), plaintiffs and other plaintiffs (group problems), and plaintiffs’
attorneys and other plaintiffs’ attorneys (competition problems). Although
judges regularly refuse to certify these cases as class actions, they still
proceed en masse to achieve economies of scale and present a credible
threat to defendants. Assuming that coordinating and consolidating large-
scale litigation is systemically desirable, this Article explores a new ap-
proach to removing the group and agency problems that increase aggre-
gate litigation’s costs and undermine its normative goals such as fairness,
compensation, and deterrence.
Unlike traditional scholarship that emphasizes individual autonomy or
welfare maximization, this Article borrows from the literature of moral and
political philosophy as well as social psychology to analyze group dynam-
ics within nonclass aggregation. It requires us to view plaintiffs within
large-scale litigation as a community of sorts and to recognize that some-
times a litigant incurs obligations simply by virtue of being a group mem-
ber, whether chosen or not and whether welfare-maximizing or not. More-
over, empirical studies demonstrate that once people consider themselves
part of a group, they exhibit other-regarding preferences—trust, reciproci-

* Assistant Professor, Florida State University College of Law. For invaluable comments on
earlier drafts and/or thought-provoking discussions, I am indebted to Curtis Bridgeman, Thomas
Burch, Robin Craig, Brannon Denning, Sam Issacharoff, David Marcus, Dan Markel, Richard Naga-
reda, J.B. Ruhl, Tony Sebok, Peggy Torrey, Lesley Wexler, Manuel Utset, Ben Zipursky, and partic-
ipants at Law and Society’s Access to Justice Panel and Vanderbilt University School of Law’s Round-
table on Mass Settlements via Contract with Plaintiffs’ Law Firms. Special thanks to Al Pennington
and numerous members of the Merck Settlement Group for their willingness to correspond with me
and for their thoughtful insights about the Vioxx settlement.
1
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AM Last Printed: 12/21/2009 9:52:00 AM
2 Alabama Law Review [Vol. 61:1:1
ty, and altruism—toward other members. Cohesive group members are
more likely to cooperate with one another and care about the collective
outcome, and less likely to exit the group when doing so benefits the indi-
vidual rather than the group. In the face of hard cases, of instability and
disunity, plaintiffs who have made promises and assurances to one another
can invoke social norms of promise-keeping, social agglomeration, compa-
tibility, and the desire for means–end coherence to achieve consensus,
mitigate client–client conflicts, and restore the tether between clients and
their attorneys. Thus, using groups to overcome the problems in nonclass
aggregation not only makes sense from a group responsibility perspective,
but it may also harmonize with wealth maximization and individual auton-
omy goals.
ABSTRACT ............................................................................1
INTRODUCTION ......................................................................2
I. HAZARDS OF NONCLASS AGGREGATION ......................................9
A. Conflicts .................................................................... 10
B. Allocation Issues .......................................................... 14
II. FROM MEDIEVAL GROUPS TO FACEBOOK FRIENDS ...................... 16
A. Group Formation ......................................................... 18
1. Everyday Groups ..................................................... 18
2. Modern Litigation Groups .......................................... 20
i. Plural Subjects ................................................... 23
ii. Shared Cooperative Activity ................................... 26
iii. Shared Goals or Policies ...................................... 28
3. Large-Scale Groups .................................................. 31
B. Group Instability .......................................................... 33
III. MITIGATING DISUNITY, MITIGATING DILEMMAS ....................... 36
A. Obligations ................................................................ 38
1. External Coercion .................................................... 38
2. Intragroup Obligations .............................................. 41
B. Cooperative Alternatives ................................................. 47
1. Group Deliberation .................................................. 48
2. Mutual Assurances ................................................... 51
C. Minimizing Subgroup Competition ..................................... 53
CONCLUSION ....................................................................... 58

INTRODUCTION
Group dynamics fundamentally change mass litigation. But few, if
any, attempts have been made to harness the power of groups for the good
of the litigants. The reason, in part, is that scholars tend to approach the
judicial handling of large-scale litigation—class actions, mass torts, non-
class aggregation—and the problems it engenders based on one of two
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AMLast Printed: 12/21/2009 9:52:00 AM
2009] Litigating Groups 3
perspectives. One camp includes those who want to use aggregation pro-
cedures to regulate conduct efficiently and deter wrongdoing in order to
maximize social welfare; the other privileges individual autonomy and
consent over the general welfare, aiming to afford individual justice to
victims through their own day in court.1 Nearly all theoretical scholarship
on large-scale litigation invokes one or both of these two principles—
welfare maximization or individual autonomy. Relying principally on these
two perspectives, however, leads us to many of the same arguments. Not
surprisingly then, perennial problems—imperfect agency, conflicts of in-
terest, holdouts, and settlement misallocation—persist today. This Article
seeks a new route, one that may meld or disrupt these existing factions on
different points, but ushers in a new way of thinking about the plaintiffs
within large-scale litigation by focusing on group dynamics.
An alternative emphasis on groups, one that borrows from moral and
political philosophy as well as cognitive social psychology, can change the
terms of this debate and mitigate aggregation’s age-old dilemmas. But it
requires us to view plaintiffs within large-scale litigation as a community
of sorts and to recognize that sometimes obligations follow simply by vir-
tue of being a group member, whether chosen or not.
To explain, until a few decades ago, political philosophy divided along
roughly the same lines as class action scholarship. Utilitarians such as
Jeremy Bentham and John Stuart Mill promoted welfare maximization,

1. For examples of those who tend to emphasize individual autonomy, see Richard A. Epstein, The
Consolidation of Complex Litigation: A Critical Evaluation of the ALI Proposal, 10 J.L. & COM. 1
(1990); Martin H. Redish & Nathan D. Larsen, Class Actions, Litigant Autonomy, and the Founda-
tions of Procedural Due Process, 95 CAL. L. REV. 1573 (2007); Roger H. Trangsrud, Mass Trials in
Mass Tort Cases: A Dissent, 1989 U. ILL. L. REV. 69 (1989). Echoes of autonomy exist in Supreme
Court opinions as well. E.g., Ortiz v. Fibreboard Corp., 527 U.S. 815, 846 (1999); Martin v. Wilks,
490 U.S. 755, 761–62 (1989) (discussing the idea of one’s own day in court), superseded by statute,
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074; Phillips Petroleum Co. v. Shutts, 472
U.S. 797, 811–12 (1985) (discussing class members’ rights to notice and opt out).
For examples of those adopting a collective or efficiency-based approach, see JACK B. WEINSTEIN,
INDIVIDUAL JUSTICE IN MASS TORT LITIGATION (1995); Bruce L. Hay, Asymmetric Rewards: Why
Class Actions (May) Settle for Too Little, 48 HASTINGS L.J. 479 (1997); Jonathan R. Macey & Geoff-
rey P. Miller, The Plaintiffs’ Attorney’s Role in Class Action and Derivative Litigation: Economic
Analysis and Recommendations for Reform, 58 U. CHI. L. REV. 1 (1991); David Rosenberg, Class
Actions for Mass Torts: Doing Individual Justice by Collective Means, 62 IND. L.J. 561 (1987); David
Rosenberg, Individual Justice and Collectivizing Risk-Based Claims in Mass-Exposure Cases, 71
N.Y.U. L. REV. 210 (1996) [hereinafter Individual Justice]; David Rosenberg, Of End Games and
Openings in Mass Tort Cases: Lessons from a Special Master, 69 B.U. L. REV. 695 (1989).
Still others have recommendations for mitigating between these two camps to protect both individual
and group interests. See Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71
N.Y.U. L. REV. 13 (1996); Richard L. Marcus, They Can’t Do That, Can They? Tort Reform Via Rule
23, 80 CORNELL L. REV. 858 (1995); Francis E. McGovern, An Analysis of Mass Torts for Judges, 73
TEX. L. REV. 1821 (1995); Judith Resnik, Aggregation, Settlement, and Dismay, 80 CORNELL L. REV.
918 (1995); Judith Resnik, From “Cases” to “Litigation,” 54 LAW & CONTEMP. PROBS. 5 (1991).
Many of these demarcations come from David L. Shapiro, Class Actions: The Class as Party and
Client, 73 NOTRE DAME L. REV. 913, 914–16 nn.3–4 (1998).
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AM Last Printed: 12/21/2009 9:52:00 AM
4 Alabama Law Review [Vol. 61:1:1
pronouncing, “justice . . . is whatever utility requires.”2 Other theorists
dating back to the classical social-contract model, such as Hobbes, Locke,
and Rousseau, tended toward autonomy, pressing for some notion of indi-
vidual consent to bind people through a social contract theory of political
obligation.3 John Rawls then built on these ideas to construct a political
philosophy based on individual autonomy.
But after John Rawls—and in some ways because of Rawls—things
began to change. A third lens for political philosophy emerged. Michael
Sandel famously argued that we have obligations simply by virtue of being
members of a community, regardless of whether we consented to being
part of that community or whether recognizing those obligations max-
imized welfare.4 In addition to Sandel, Charles Taylor, Michael Walzer,
and Alasdair MacIntyre emphasized human association as a source of self-
identity and the building block of society.5 By now, political philosophers
have developed a sophisticated literature on what constitutes a political
community, the qualifications for community membership, and the moral
consequences that flow from such membership.
Bringing this literature to bear on mass litigation suggests an uncon-
ventional source of litigant obligations apart from privileging autonomy or
maximizing welfare. The alternative is based instead on inclusion within
the relevant community. Once we consider what constitutes a community
within large-scale litigation, social psychology offers a growing empirical
literature on group norms, collective decision-making, and cooperation.
When people conceive of themselves as group members, they demonstrate
other-regarding preferences. They tend to change their views of distribu-
tive and procedural justice such that they are no longer principally con-
cerned with their own outcome, but with equity for the collective group.
Group membership fundamentally changes the litigation calculus in bene-
ficial ways—litigants feel obligated to one another. To capitalize on those
other-regarding preferences, social psychology also recommends tech-
niques to foster group formation and increase cohesion and stability.
To make concrete these abstract ideas, consider two familiar exam-
ples. The first is a family. Simply by virtue of being related, many would

2. MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 5 n.1 (1982). Mill states this propo-
sition less succinctly. JOHN STUART MILL, UTILITARIANISM 59 (George Sher, 2d ed., Hackett Publish-
ing Co., Inc. 2001) (1861) (“While I dispute the pretensions of any theory which sets up an imaginary
standard of justice not grounded on utility, I account the justice which is grounded on utility to be the
chief part, and incomparably the most sacred and binding part, of all morality.”).
3. Although Hobbes and Rousseau are not universally regarded as autonomists in the Kantian sense, I
categorize them as autonomy theorists since the point of the social contract is that it bases political
obligation on some notion of individual consent.
4. SANDEL, supra note 2, at 1–14.
5. ADRIAN LITTLE, THE POLITICS OF COMMUNITY 19 (2002). Although these scholars have become
known as “communitarians,” most eschew that label. Sandel, in particular, seems to see himself as
reviving civic republicanism.
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AMLast Printed: 12/21/2009 9:52:00 AM
2009] Litigating Groups 5
agree that we have obligations to our parents even though we had no part
in selecting them. The second example comes from tort law. Generally,
we have no duty to rescue one another. But, if you are in the middle of a
multicar pileup (through no fault of your own), and you inadvertently put
someone else in peril, then you have an obligation to help her.6 You have
not consented to being a son or daughter or part of a car accident in any
meaningful way; nevertheless, you incur certain obligations simply by
being part of that “community.”7 To be sure, claiming that communities
give rise to obligations says nothing about the nature of those obligations.
A duty to rescue in tort law might simply require you to call for help, not
to endanger your own life in a heroic rescue. But the point for now is that
mere membership in a group, whether chosen or not and whether welfare-
enhancing or not, can sometimes give rise to obligations.8
This Article has two objectives. First, I argue that scholars, judges,
and practitioners who are either thinking about or engaged in large-scale
litigation—be it class actions, mass torts, or other nonclass aggregation—
should seriously consider this alternative source of obligation. Although I
focus here on nonclass aggregation, the general insights about community,
commitments, and groups apply to other forms of aggregation as well.
Aggregation involves cases where many people are injured in comparable
ways by the same product, drug, or chemical; the same defendant; or who
share some other common denominator. Thus, plaintiffs can be loosely
construed as a community, not just a collection of individuals. To use a
term first coined by Margaret Gilbert, these individuals constitute a “plur-
al subject.”9 Characterizing litigants in this way forces us to contemplate
the possibility that the content of their rights and duties may not depend
only on what maximizes the general welfare or what preserves their indi-
vidual autonomy, but what follows from their membership in that group.

6. See RESTATEMENT (THIRD) OF TORTS § 40 cmt. d (Tentative Draft No. 4, April 1, 2004) (“For
example, an automobile driver who collides with another (negligently or non-negligently) has a duty to
use reasonable care to prevent further harm to the other.”); John C.P. Goldberg & Benjamin C. Zi-
pursky, Unrealized Torts, 88 VA. L. REV. 1625, 1709–10 (2002); John C. P. Goldberg & Benjamin C.
Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 VAND. L. REV. 657,
747 (2001); cf. Fuentes v. Reilly, 590 F.2d 509, 513 (3d Cir. 1979); Brooks v. E. J. Willig Truck
Transp. Co., 255 P.2d 802, 808–09 (Cal. 1953); RESTATEMENT (SECOND) OF TORTS § 322 (1965) (“If
the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused
such bodily harm to another as to make him helpless and in danger of further harm, the actor is under
a duty to exercise reasonable care to prevent such further harm.”). I am indebted to Curtis Bridgemen
for suggesting this example.
7. I use the terms “community” and “group” in their colloquial sense and often use them interchange-
ably. To be sure, a community would technically be one type of group, and groups themselves may
form within plural communities.
8. Granted, utilitarians might fairly claim that these duties are justified because they maximize wel-
fare. My objective here, however, is to say simply that a moral duty arises from the fact of member-
ship in a community, regardless of whether that duty also happens to increase welfare.
9. MARGARET GILBERT, SOCIALITY AND RESPONSIBILITY 3 (2000); see also Shapiro, supra note 1,
passim (reasoning that a class action is more than an aggregation of its individual members).
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AM Last Printed: 12/21/2009 9:52:00 AM
6 Alabama Law Review [Vol. 61:1:1
Still, even if I am right about this broad idea, two daunting questions
remain: What constitutes a litigation community, and what obligations
flow from membership in that community? The most I can do in this re-
gard is hint at some answers by drawing from the literature of philosophy
and social psychology. Unsurprisingly, there are many types of communi-
ties and the nature and obligations depend heavily on the community itself.
My second objective is to demonstrate more concretely how group-
based obligations and empirical studies on groups should inform the way
we approach nonclass aggregation. Nonclass aggregation means mass
joinder actions—such as the Vioxx, Zyprexa, and asbestos cases—that
encompass claims held by multiple plaintiffs who each have a contractual
relationship with their attorney. These claims cannot be certified as a class
action either because individual issues predominate or a class action would
be unmanageable.10 Even though the nature of personal injury and product
liability claims might compel litigants to initiate these claims individually,
because the costs of effectively developing and litigating such claims is so
high, aggregation helps effectuate substantive goals and creates a credible
threat to defendants.
Three related notions underlie this second objective. First, I rely on
the literature from moral and political philosophy to define and explain
how litigants within nonclass aggregation form a community and to sug-
gest the obligations that flow from that community. Second, empirical
findings from social psychology demonstrate that once people perceive one
another as group members, they tend to fundamentally change their ideas
about justice: they care not just about their own outcomes but about the
group’s collective welfare. They are more likely to cooperate and less
likely to defect. Thus, moving beyond a reductionist theory—the idea that
a group is simply an aggregate of individuals—and making a serious in-
quiry into “groups” provides clues about alleviating aggregation’s quintes-
sential dilemmas of attorney–client conflicts, client–client conflicts, alloca-
tion problems, the lack of voice opportunities, and even the so-called
“holdout problem.” Third, social psychology also suggests methods for
fostering group cohesion. Put differently, after recognizing that group
members incur moral obligations to one another and that membership both
increases cooperation and changes decision-making about dilemmas, we
should explore how the legal system can encourage those prosocial beha-
viors.
To accomplish these two objectives, this Article is divided into three
parts and rests on several assumptions.11 Throughout this Article, I take

10. For a detailed definition of nonclass aggregation, see infra pp. 9–12.
11. These assumptions build on my previous scholarship in this area and permit me to develop a
framework for this new approach. See Elizabeth Chamblee Burch, Procedural Justice in Nonclass
Aggregation, 44 WAKE FOREST L. REV. 1 (2009) [hereinafter Burch, Procedural Justice]; L. Elizabeth
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AMLast Printed: 12/21/2009 9:52:00 AM
2009] Litigating Groups 7
for granted a prototypical aggregate lawsuit: many plaintiffs (who may be
geographically dispersed) bring tort claims with sometimes difficult causa-
tion issues against a large corporate defendant and request damages and
possibly other relief. Changes in this base assumption, such as territorial
proximity, make group formation and cohesion simpler. I further assume
that a settlement offer is fair, though that assumption and its definition are
heavily disputed in real-world cases. Finally, this Article brackets, for
now, first-order questions about the nature and purpose of the tort system
and assumes a pluralist perspective.
Part I explains the occurrence and prevalence of nonclass aggregation
and highlights the conflicts that process engenders. Conflicts surface be-
tween attorneys and their clients and between plaintiffs and other plaintiffs
over when and how to settle, litigation goals, and how to allocate the set-
tlement proceeds. The defendant’s desire for complete peace exacerbates
the holdout problem, where some plaintiffs demand premiums for their
consent and thus threaten to derail the settlement. Disunity emerges as the
common thread; promoting harmony and cooperation—unity in other
words—mitigates the discord. Plus, a unified group is in a better position
to perform the oversight functions that protect clients in traditional bipolar
litigation, such as monitoring the litigation’s progress and holding the at-
torney accountable.
Part II lays the theoretical foundation for the proposed alternative: a
novel claimant-centered approach founded on groups and social norms.
Accordingly, Part II undertakes the task of defining and explaining how
aggregate litigants can be considered a community. Using illustrations
from Agent Orange, Vioxx, the Buffalo Creek Disaster, and the Holocaust
litigation, this section introduces the “plural subject” concept as an um-
brella term and develops its stronger subsets—shared cooperative activity
and shared group policies. It then questions whether large-scale litigation,
such as Vioxx, could constitute a singular group. It concludes that the pos-
sibility exists, but that relying on superficial unifying features as the social
glue may prove too thin to endure in the face of hard cases. Dispersion
due to instability and shallow cohesion may cause splintering and sub-
grouping.
Part III builds on this theory of groups within nonclass aggregation to
mitigate some of the problems raised in Part I, including holdouts, group
outliers, and subgroup competition. First, it posits that obligations follow
from being a plural subject and evaluates when members are morally obli-
gated to one another not to opt out of the litigation. When litigants jointly
and voluntarily intend to perform all or some litigation tasks together and

Chamblee [Burch], Unsettling Efficiency: When Non-Class Aggregation of Mass Torts Creates Second-
Class Settlements, 65 LA. L. REV. 157, 160 (2004).
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AM Last Printed: 12/21/2009 9:52:00 AM
8 Alabama Law Review [Vol. 61:1:1
commit to doing so through promises and assurances, they are morally
obligated to act in accordance with those intentions.12 Thus, it is the prom-
ises and assurances—the commitment—made in the execution and etiology
of group development that obligates. This Subpart does not take a position
on how substantive law should enforce those moral obligations; instead,
the second Subpart of Part III suggests methods for cultivating group co-
hesion in mass litigation through cooperation. Cooperation challenges the
purported need for externally coercive mechanisms to obligate and restrain
litigants. That is, once we recognize that plural subjects incur moral obli-
gations to one another and that membership both increases cooperation and
changes decision-making about dilemmas, systemically encouraging those
prosocial behaviors helps alleviate problems caused by outliers and hol-
douts. Finally, the last Subpart proposes methods for reducing competition
between subgroups by using a special officer or mediator to make salient
the collective membership category and deemphasize factional allegiance.
In short, this Article posits that cohesive groups provide a more dura-
ble solution to the challenges inherent in collective litigation: the client–
client conflicts, allocation issues, and holdout problems. In the face of
hard cases, of instability and disunity, a group that has made promises and
assurances to one another can invoke social norms of promise-keeping,
social agglomeration, compatibility, and the desire for means–end cohe-
rence to achieve consensus. Thus, by focusing on group cohesion and the
obligations that follow from group membership, this alternative reallocates
power to the claimants themselves. Make no mistake: this new approach
fundamentally modifies the attorney’s role. Unlike most scholarship on
this topic—including most prominently the American Law Institute’s Prin-
ciples of the Law of Aggregate Litigation—this Article does not concede
that the attorney rightly acts as the fulcrum in aggregate litigation.13 In-
stead, the power imbalance between dispersed claimants and their attorney
causes many of the conflicts in nonclass aggregation. Strengthening group
cohesion restores the tether between the group and its agent and better
situates the group to monitor the litigation.

12. This idea is distinct from a contract because mere promises are not legally enforceable. See infra
notes 182–183 and accompanying text. For more on how contracts might reinforce this notion of
obligation, see infra note 224 and accompanying text.
13. The dominant paradigm emphasizes the principal–agent problem and accepts the attorney–agent as
the litigation architect and director. This prevailing approach is seen most recently in the American
Law Institute’s current project on the Principles of the Law of Aggregate Litigation. PRINCIPLES OF
THE LAW OF AGGREGATE LITIG. (Proposed Final Draft 2009). My intent is not to downplay the impor-
tance of that invaluable project, but to challenge some of its principal assumptions.
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AMLast Printed: 12/21/2009 9:52:00 AM
2009] Litigating Groups 9
I. HAZARDS OF NONCLASS AGGREGATION
One way to think about the problems occurring in nonclass aggrega-
tion is to characterize aggregate settlements as a social dilemma, specifi-
cally a common pool dilemma. In social dilemmas, the payoff to each in-
dividual for defecting rather than cooperating is greater, but everyone is
better off if each cooperates than if all act selfishly.14 Consider, for exam-
ple, an individual plaintiff’s inherent conflict with the group’s collective
interests. A plaintiff who defects by demanding a premium for her consent
rather than cooperating with other litigants receives a higher payout.15
And, assuming the settlement offer is fair, all plaintiffs are better off if
each cooperates than if one holds out. Enough holdouts could derail an
offer contingent on a certain percentage of acceptances and no one would
receive anything. In short, the more litigants who choose to pursue their
private interests at the expense of the group’s collective interests, the more
the group falls short of achieving its collective goals.
Initiating litigation, even aggregate litigation, frequently presents no
explicit social dilemma because litigants assume, correctly or not, that the
defendant has abundant resources to fully compensate each individual. But
at some point, typically once the defendant makes a settlement offer, the
common pool’s limits become apparent. While distributive justice con-
cerns prevail until this triggering event occurs, once plaintiffs realize that
not everyone will actualize the full value of their losses, procedural justice
concerns shift to the forefront.16 If claimants initiated individual lawsuits,
then each might push to obtain the biggest possible portion of the settle-
ment’s proceeds. Clearly, it would be better for all involved to show a
little restraint or work in unison, so that no one deserving compensation is
left with nothing. But, if no one else is going to restrain herself, then there
is little incentive to be the one who does.
This Part highlights the conflicts and dilemmas that arise in deciding
when and whether to settle as well as in allocating settlement proceeds
among the plaintiffs. It begins with the context leading to aggregate set-
tlements and then explains how that context breeds conflict—conflict be-
tween clients and between clients and their attorneys. Those conflicts are

14. Robyn M. Dawes, Social Dilemmas, 31 ANN. REV. PSYCHOL. 169, 170 (1980); see also Garrett
Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1244–45 (1968) (explaining the tragedy of
freedom in a commons); Elinor Ostrom, Engaging Impossibilities and Possibilities, in 2 ARGUMENTS
FOR A BETTER WORLD: ESSAYS IN HONOR OF AMARTYA SEN 522, 525–28 (Kaushik Basu & Ravi
Kambur eds., 2009), available at http://ssrn.com/abstract=1304701.
15. If litigants’ primary objective is injunctive or declaratory relief, then the group is far more likely
to be certified as a Rule 23(b)(2) class action. Consequently, my concern here is with litigants who
seek damages, but cannot be certified as a class under Rule 23(b)(3).
16. David A. Schroeder et al., A Recursive Model for Changing Justice Concerns in Social Dilem-
mas, in NEW ISSUES AND PARADIGMS IN RESEARCH ON SOCIAL DILEMMAS 142, 143–44 (Anders Biel
et al. eds., 2008).
File: BURCH.Litigating Groups.FINAL APPROVED (with figs).docCreated on: 12/3/2009 11:56:00 AM Last Printed: 12/21/2009 9:52:00 AM
10 Alabama Law Review [Vol. 61:1:1
most pronounced in determining whether to accept a settlement offer and,
once accepted, in allocating funds among claimants.
A. Conflicts
Nonclass aggregation can occur in any number of ways: some plain-
tiffs may purposefully enter into contingency-fee agreements with specific
attorneys who represent similar plaintiffs; others might be grouped
through coercive court-mandated consolidation and transfer procedures
such as multidistrict transfer, joinder under Rule 20, and consolidation
under Rule 42.17 Other litigants may first form a group and then seek col-
lective representation. Still others may join the litigation post-aggregation
after hearing about it in the news or through attorney advertising.18 Thus,
a single lawyer or firm may represent multiple claimants in a single case,
or might coordinate individually filed actions. To illustrate:
Clusters within Nonclass Aggregation:
Figure 1:

Individual Outlier

The se are geographic clusters or
individuals entering into litigation

together who are represented by a
sing le attorney. The aggregation may
or m ay not end here. Individuals are represented by the same or different attorneys
and are clustered together voluntarily (through cooperating

plaintiffs’ attorneys) or involuntarily (through court-ordered
transfer and consolidation). Geographic dispersion is likely.
Holdouts are those within the group who refuse to settle.
Outliers are those outside of the group who have claims

pending against the same defendant.

17. 28 U.S.C. § 1407 (2000) (multidistrict transfer); FED. R. CIV. P. 20 (permissive party joinder);
FED. R. CIV. P. 42(a) (consolidation).
18. See Judith Resnik, Dennis E. Curtis & Deborah R. Hensler, Individuals within the Aggregate:
Relationships, Representation, and Fees, 71 N.Y.U. L. REV. 296, 304 (1996); Paul D. Rheingold, The
Development of Litigation Groups, 6 AM. J. TRIAL ADVOC. 1, 1–3 (1982). In aggregate litigation, the
attorney is often the catalyst in motivating group membership and in defining group goals. See Linda
S. Mullenix, Resolving Aggregate Mass Tort Litigation: The New Private Law Dispute Resolution
Paradigm, 33 VAL. U. L. REV. 413, 432–33 (1999); Rheingold, supra, at 2. Richard Nagareda pro-
vides a helpful overview of the client recruitment process in his book, Mass Torts in a World of Set-
tlement. RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 16–18 (2007).